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Issue Statements or Questions Presented

a. Stating the Question You Will Answer: Precisely, Completely, Simply, and Neutrally

The legal issue section sets out the questions you will ultimately answer. These questions link your research to your discussion and conclusion.

The client asks questions like "Will I win?", "Am I going to jail?", "Am I liable?", or "Will I be evicted?"

The issue section reframes the client's questions into legal questions that identify the controlling legal rules and relevant client facts.

The question, "Can I sue?" becomes:

"Did the security guard at the department store falsely imprison John Crate when the guard held Crate's arm, preventing him from leaving the store until the police arrived?"

The question needs to be precise, complete, and straightforward.

In predictive writing, the question must be neutral to the point that either side might have written the same question. Otherwise, your reader could assume your analysis is not objective and may only reflect one side of the issue.

Example

"Will John Crate be awarded damages because he was falsely imprisoned by the store's security guard?"

This would not be a neutral question because the key issue (was he falsely imprisoned?) is stated as conclusion.

Occasionally, assigning lawyers will ask an abstract or general legal question when they need an update on a specific area as background for a client matter, or for a firm newsletter, or for a presentation.

Example

"What is the current state of the law on false imprisonment?"

However, memos usually relate to specific client facts.

Expressing the issues accurately is one of the most difficult aspects of memo writing.

Writers face the challenge of how detailed to make the issue statement, how many issues to include, and whether issues should be stated separately or as sub-questions.

Experienced legal writers expect to redraft the issue section as they rework the discussion section. While the initial version of the issues helps the writer structure the discussion, the iterative process of thinking and writing often changes the content and structure of the legal issue.

Clarity is your goal

Memo writers often use one of several conventions. All the conventions share certain key features. They:

are stated in a neutral fashion, and

alert the reader to the relevant law, the significant facts, and the questions that will be discussed.

Here is a short explanation of the most common issue writing conventions.

Question Format

This is the most common way to express an issue because it directly connects to the task of answering the client's questions. A good question gives the reader an immediate sense of the key facts and the legal tests. Where you have more than one issue, each should be expressed separately, usually in number format.

Example

Your client, Jordan William, learned that a bank employee had snooped into his banking information for personal reasons. There are no cases in your jurisdiction claiming damages for invasion of personal privacy. Here is an example of an issue statement on whether your jurisdiction will adopt a new cause of action:

Will the court recognize a civil action for invasion of personal privacy and award damages when a bank's employee examined Jordan William's bank account without authorization over a period of 10 months?

"Whether" Format

This is another common way of expressing an issue. Some lawyers prefer it because to their ear it sounds more neutral. Others don't like it because it is an incomplete, ungrammatical sentence, and can sound awkward.

Punctuation Note: "whether" introduces a statement, and not a question, so there is no question mark at the end of the sentence.

Example

"Whether Jordan William has a claim against the bank employee for invasion of privacy because of the bank employee's unauthorized examination of his banking records."

"Under, does, when" Format

Some legal writing experts recommend this format because the structure acts as a checklist. If you follow the format you will be sure to cover the law, the facts, and the question to be answered.

Example

"Under the common law, does Jordan William have a claim for invasion of privacy when the bank employee looked at his bank records for personal reasons?"

In this example:

under introduces the law being applied

does asks the legal question

when sets out the material facts

Multi-statement Format

Memo writers use single sentence issue statements because of convention; there is no rule that says you must write it in one sentence.

The single sentence issue statement can be long, complex, and hard for the reader to understand on first reading.

A multi-statement format is gaining popularity because it can be easier to read, is more comprehensive, and is more concrete. This format is essentially a longer version of the under, does, when format spread over three or four sentences. The format calls for a short explanation of the legal principle involved, then a brief note of the material facts, followed by the legal question that will be answered in the memo.

Example

In this example the writer elaborated on the legal criteria and added more facts to support the question.

"An action for invasion of privacy under the common law can exist where there is an intentional intrusion into a person's private affairs, without legal justification, and under circumstances that a reasonable person would find highly offensive. The bank employee admitted that he looked at William's banking records over a period of 10 months for personal reasons, unrelated to the bank's business. Was this act an invasion of William's privacy entitling him to damages?"

The multi-statement format can add clarity.

There is a caveat: Be careful not to get carried away and write too much.

c. Tips

Skilled legal writers do everything possible to make the issue statement useful to the reader. Here are some expert tips:

If there is more than one issue, put the important issue first.

Be as specific as possible, incorporating key facts and the law.

Look to the language of the governing statute or legal rule for phrasing ideas.

Keep the same convention and format for all issues. Changing the structure can make it difficult to read. But don't be a slave to a format – the reader's understanding is more important than consistent format.

Number the issues and use common legal writing conventions for numbering. Most writers use numbers for issues and lower case letters for sub-issues.

e. Exercises

Exercise 1 – To Prosecute Or Not To Prosecute – That Is This Memo's Question

Client Facts

Sam Iam needed cash but didn't have a job or any prospects of one. He went to the mall to think over his future. He was sitting in the mall coffee shop contemplating whether to spend his last $5 on a latté when he saw a customer drop a tray of coffee cups. The coffee spilled over the floor around several nearby tables, splashing several other customers. The two coffee shop employees hurried around the counter to mop up the mess and blot coffee from angry customers. But the employees left the cash register open and unattended. Acting on impulse, Sam leaned over the counter and grabbed a handful of bills from the register. One of the employees turned, saw what Sam was doing, and shouted for him to put the money back. Sam quickly stuffed the bills in his pocket and turned to run out of the coffee shop. To get away, he shoved another customer into the large jar of marbles the coffee shop had as a guess-the-number-of marbles-in-the jar contest. The jar fell and the marbles rolled everywhere. The two employees started toward Sam but both fell when they stepped on the rolling marbles. One of the employees broke his arm in his fall. Sam was caught at the door by the mall's security guard.

The prosecutor needs to decide whether to prosecute Sam under s. 343 of the Criminal Code. How would you write the issue statement in the memo for a prosecutor who needs to decide whether this is the right section to prosecute under?

Relevant Law

Criminal Code, s. 343: Every one commits robbery who

steals, and for the purposes of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

steals from any person, and at the time he steals or immediately before or immediately after, wounds, beats, strikes, or uses any personal violence to that person;

assaults any person with intent to steal from him; or

steals from any person while armed with an offensive weapon or imitation thereof.

Activity

Try your hand at using 4 issue statement formats. Write the issue statement for the To Prosecute Or Not To Prosecute memo in each format. Then, compare your statement to the one written by the student's law firm mentor.

Question Format

Law Firm Mentor's Version

After taking money from the cash register, did Sam use violence by pushing another customer into the jar of marbles, causing injury to one of the shop's employees?

"Whether" Format

Law Firm Mentor's Version

Whether Sam's act of pushing another person into the jar of marbles, causing it to fall and leading to the injury of an employee, was violence or assault under s. 343 of the Code.

"Under, does, when" Format

Law Firm Mentor's Version

Under s. 343 of the Code, does it constitute violence when Sam pushed a person into a jar of marbles, causing it to fall and injure an employee who was attempting to stop the theft of money from the cash register?

Multi-statement Format

Law Firm Mentor's Version

Robbery under s. 343 of the Code requires violence or assault during or after stealing. After taking money from the cash register, Iam pushed another person into a jar of marbles, which led to injury to an employee of the coffee shop. Is this violence or assault under s. 343?

Exercise 2 – Get Our Client an Extension to File a Claim

Client Facts

Our client, Sandy Jackson, required stitches when she cut her tongue and inner lip biting a sharp metal fragment in a sandwich she purchased at the Deli-King take-out restaurant. Her work colleague, Mark, helped her to the clinic, and then took the metal fragment to the Deli King. The cashier said she would give it to the manager to look into the matter. Nothing happened.

Sandy went to a lawyer who reassured her over the course of a year that everything was being taken care of. Now eighteen months later, Sandy discovered the lawyer issued a statement of claim but did not serve it on time. She has now come to us.

We are taking immediate steps to get this back on track. I spoke to the Deli King manager, who denies any knowledge of the incident or having seen the metal fragment. He also said they dispose of all unused fresh meat and any unsold sandwiches after two days, so there would be no way to determine where the metal came from or whether there was metal in any other sandwich. He also said he hires mainly students to work at the sandwich counter and they do not stay very long in his employment. There is no one still working with him who would have been there when Sandy bought the sandwich.

Relevant Law

Rule 14.08(1) of the Rules of Civil Procedure sets a six-month time limit for serving a statement of claim after it has been issued, but Rule 3.02 (1) allows the court to extend any time limits on just terms.

The case law says that a plaintiff must show that the extension will not cause prejudice or unfairness to the defendant. However, the defendant has to demonstrate that the delay caused the prejudice claimed. There must be a change in the evidence available because of the delay.

Activity 1 – Write an Effective Issue Statement

Evaluate each of the student’s draft issue statements. Check all the boxes that apply. Then read the mentor’s comments.

Issue Statement 1

"Will the court extend time for service?"

The issue statement is:

Precise: covers all necessary elements and does not include unnecessary details.

Neutral: written objectively and without factual or legal conclusions.

Captures the legal test, elements, standard or criteria: refers to the core legal question to be answered.

Mentor's Comments

The answer is: None of the boxes should be checked.

Mentor: You have merely written out the client's question. This is a vague, generic statement. Rewrite this please.

Issue Statement 2

"Will the court extend time for service where a plaintiff hires a new lawyer who took immediate steps to correct the original lawyer's error and there was no prejudice to the defendant because of the delay?”

The issue statement is:

Precise: covers all necessary elements and does not include unnecessary details.

Neutral: written objectively and without factual or legal conclusions.

Mentor's Comments

Mentor: Here is an issue statement that is off to a good start because it states the legal test; there must be a relationship between the delay and the defendant's ability to obtain a fair result. However it states a key factual issue – whether there was an adverse effect – as a conclusion. The statement is not neutral. Rewrite this please.

Issue Statement 4

"Will the court extend the time for service based on prejudice to the defendant where:

the plaintiff's new lawyer acts promptly to repair the error, and

there was no change in the evidence available to the defendant because of the delay”

The issue statement is:

Precise: covers all necessary elements and does not include unnecessary details.

Neutral: written objectively and without factual or legal conclusions.

Captures the legal test, elements, standard or criteria: refers to the core legal question to be answered.

Mentor's Comments

The answer is: b, c, and d.

Check all the boxes except a. Precise.

Mentor: This statement is clearly written. However, what is not clear is the logical link between the first fact listed and the key legal criteria – whether there is prejudice to the defendant. Something is missing here. I would like you to rewrite it to make the connection clearer.

Issue Statement 5

“Will the court extend the time for service based on prejudice to the defendant where the evidence available to the defendant was the same before and after the delay?”

The issue statement is:

Precise: covers all necessary elements and does not include unnecessary details.

Neutral: written objectively and without factual or legal conclusions.

Captures the legal test, elements, standard or criteria: refers to the core legal question to be answered.

Mentor's Comments

The answer is: a, b, c, and d. All of the boxes should be checked.

Mentor: This statement is the most accurate and neutral. The reader can see the relationship between the case law standard (prejudice) and the material fact. Good work.

Activity 2

Try your hand at using 4 issue statement formats. Write the issue statement for the Extension of Time memo in each format. Then, compare your statement to the one written by the student's law firm mentor. Remember, there is no one right way to write these issue statements and the mentor's suggestions represent his preferences.

Question Format

Law Firm Mentor's Version

Will the court refuse the plaintiff's request to extend the time for service based on prejudice to the defendant where there was no change in the evidence available to the defendant after the delay?

"Whether" Format

Law Firm Mentor's Version

Whether the court will refuse the plaintiff's request to extend the time for service on the grounds of prejudice to the defendant where the evidence available to the defendant is the same before and after the delay.

"Under, does, when" Format

Law Firm Mentor's Version

Under the Rules of Civil Procedure, does the defendant have sufficient grounds to claim prejudice so that a court will deny the plaintiff's request to extend the time for service, when the evidence available to the defendant was the same before and after the delay?

Multi-statement Format

Law Firm Mentor's Version

Rule 14.08(1) of the Rules of Civil Procedure sets a six-month time limit for serving a statement of claim after it has been issued, but Rule 3.02 (1) allows the court to extend any time prescribed by the rules on such terms as are just. The test is prejudice to the defendant. Will the court grant the plaintiff an extension of time for service where the evidence available to the defendant did not change because of the delay?